Abbas Media Law

In this issue of zoom-in brief, a defamation claim against Paramount is thrown out by a US Court, a privacy and defamation case brought against comedian Louise Beamont by her estranged husband has settled; and Ofcom adjudicates on three new Can’t Pay? We’ll Take it Away! privacy complaints.

A defamation claim against Paramount, the makers of The Wolf of Wall Street, has been thrown out by a US Court.

The Judge granted summary judgment on a claim brought by the former general counsel of the infamous securities brokerage Stratton Oakmont, the firm at the centre of the 2013 film, which starred Leonardo DiCaprio as Jordan Belfort, and which was directed by Martin Scorsese.

The claimant, Andrew Greene, complained that the character of Nicky “Rugrat” Koskoff, a lawyer at the fictitious version of Stratton Oakmont shown in the film, played by actor PJ Byrne, was a depiction of him.

The film shows the Koskoff character engaging in a wide range of criminal activity, including drug use, engaging in sexual relations with prostitutes, and other highly unprofessional conduct.

Greene was the actual general counsel and head of corporate finance at Stratton Oakmont during a key period depicted in the film, and four years ago launched a claim against the studio and production company behind it.

The ruling highlights the difficulty for claimants of bringing a claim over fictionalised depictions of real-life events.

One feature unique to US law was the need for Greene, as a public figure, to show “actual malice” on the part of the Defendant, i.e. to demonstrate that it knew that the allegations made about the claimant were not true.

This is a key protection afforded to the media by US defamation law which does not exist in the UK.

Here, the Court pointed out, it was intertwined with the need for a defamation claimant to show that the statement complained of referred to him.

The Judge concluded that a number of interlinked elements meant that Greene could not establish malice, saying:

“Specifically, based on (1) the fictionalized nature of the Movie; (2) the undisputed facts that the Koskoff Character is a composite of three people and has a different name, nickname, employment history, personal history, and criminal history than the Plaintiff; (3) the Movie’s disclaimer; (4) evidence of each Defendant’s subjective understanding that no real person was portrayed — or defamed — by the Koskoff Character; and (5) the lack of evidence to the contrary, the Plaintiff cannot establish that Defendants in fact entertained serious doubts as to the truth of [the] publication.”

Using controversial and recent real-life events in fiction can be fraught with difficulty.

However, this decision shows that removing identifiers by using name changes, disclaimers and creating composite characters can help film-makers minimise the defamation risks.

Privacy - Comedian case settles

A case brought against comedian Louise Beamont by her estranged husband over material contained in her Edinburgh Fringe stand-up show ‘Hard Mode’ has settled. Mr Reay had sued Ms Beaumont in defamation, privacy and under the Data Protection Act, over material in Ms Beaumont’s show about him. Mr Reay claimed that the show was defamatory, revealed private details of his and Ms Beaumont’s relationship and included still and moving images of him without his consent. The Parties released a brief joint statement saying that a settlement had been reached, Mr Reay had discontinued the case and the Parties would not be commenting further. The case prompted concerns over the extent to which comedians could use material about real people in their lives without the risk of being sued. Comedians often make provocative statements and use their own lives as source material for their jokes and routines but the law applies to comedians just as it does to anyone else. Often legal risk is managed by not providing identifying information about living individuals or by seeking the explicit consent of the person being referred to, but this is not always possible. Comedians and those producing or broadcasting comedy shows or programming should always seek legal advice to ensure that any risks are properly identified and dealt with.

Regulation – Ofcom - Can’t Pay? We’ll Take it Away! latest decisions

During December Ofcom has investigated three complaints against Channel 5 about the programme Can’t Pay? We’ll Take it Away! It found in favour of the complainants in two privacy cases and did not uphold the third complaint.

In the first case Mrs Y complained on behalf of herself and her daughter, when High Court Enforcement Officers visited their home about a debt relating to unpaid nursery fees. The material included the inside of their home, and Mrs Y discussing her financial circumstances, her mental health and her daughter’s medical conditions. Mrs Y was visibly upset and was shown crying. When the Enforcement Officers arrived Mrs Y had just woken up and appeared drowsy.

Ofcom noted, as it has done in previous decisions relating to this programme, that the bodycams were owned by the production company but worn by the Enforcement Officers. Mrs Y was never told that the bodycams were being used to film footage for the programme, as well as for the Enforcement Officers’ safety. Ofcom considered this to be surreptitious filming.

Ofcom concluded that it was not reasonable for Channel 5 to conclude they had Mrs Y’s informed consent in relation to the filming and broadcast footage of her and her daughter, and their privacy was unwarrantably infringed. Channel 5 believed that they did have consent, having spoken to Mrs Y about the filming of herself and her daughter. However, Ofcom found that given Mrs Y’s vulnerable state of mind and difficult circumstances they had not obtained informed consent: ‘Given that the programme makers were clearly aware of Ms Y’s state of mind and her depression and the medication she was taking, we considered that it was incumbent on them in their later conversations with her to ensure that she was made fully aware of who they were and that she properly understood the nature and purpose of the filming. This did not happen.’

Ofcom found that matters relating to the enforcement of a debt attracted a reasonable expectation of privacy and the infringement of that privacy was not warranted, Mrs Y and her daughter’s privacy rights outweighed the broadcaster’s freedom of expression rights.

This case is an important reminder of the need to ensure that where consent is obtained it is informed consent, and what is needed for consent to be properly informed will vary depending on the circumstances. Where an individual has a medical or mental health condition, is drowsy and/or in a state of distress particular care is needed.

In the second case, Mrs R complained on behalf of her and her two children about the filming and broadcast of footage of them and the interior and exterior of their home, where High Court Enforcement Officers sought to enforce a writ against her estranged ex-husband in two visits to the property.

All the footage inside the home was filmed on the Enforcement Officers’ body cams. Mrs R had made clear that she did not wish to be filmed, asking for the crew cameras to go away. As with Mrs Y and previous decisions, Ofcom considered that the body cam filming was surreptitious. Although she was told after the second visit that the body cam footage was available to the programme-makers, she was not told during the filming. It was not something she could reasonably have foreseen, particularly as the crew cameras had been asked to and had retreated to the public road. Mrs R was therefore given the misleading message that interactions with the Enforcement Officers inside her home would not be filmed for the programme. This was akin to continuing to film when a person thought filming had finished or leaving a camera inside a property without consent.

Mrs R said that she had mental health problems which were made worse by the broadcast of the programme. She had discussed her health issues, those of her children and other very personal matters when the Enforcement Officers arrived at the property. Mrs R added that the programme had upset her children. Ofcom found that Mrs R and her children had a legitimate expectation of privacy in the material and that in the circumstances the interference with their privacy was not justified. Although some of the interactions between Mrs R and the Enforcement Officers took place outside the house, filmed from the street, Ofcom took the view that this could not be separated from the filming in the house.

By contrast, in the third case the complainant Mr Ladsawut was a peripheral figure in the programme. He was filmed in his place of work, as the manager of a building which the Enforcement Officers had attended in order to enforce a business debt against a tenant. He was shown letting the Enforcement Officers in and talking to them.

The majority of the footage was recorded on the Enforcement Officers’ body cams, as Mr Ladsawut made clear that he did not consent to the main TV cameras being in the building. Ofcom therefore again took the view that continuing to film using the body cams, which were in place for the purpose of filming for the programme was surreptitious filming. Mr Ladsawut was not made aware of the way the body cam footage was being used.

However, in the circumstances Ofcom did not consider there had been a breach of the Code. Mr Ladsawut was filmed carrying out his day to day work activities, did not discuss anything private or personal and was not named. Although the body cam footage was not obtained proportionately and Mr Ladsawut did have a reasonable expectation of privacy, the broadcaster’s free speech rights and the public interest outweighed Mr Ladsawut’s privacy rights. As such the complaint was not upheld.

These are the latest in a series of Ofcom decisions relating to the programme, and in particular its use of footage from the bodycams of the High Court Enforcement Officers – bodycams which are provided by the production company. The complaints also follow, and reference, the High Court decision in Ali v Channel 5, where the Court found that the broadcasting of the programme was an infringement of Mr Ali and his wife Mrs Aslam’s privacy, and awarded each £10,000 in damages. Both sides appealed that decision: the claimants appealed the damages awards, and Channel 5 appealed the finding of liability. The hearing was held before the Court of Appeal in early December, zoom-in will report when judgment is given.

Abbas Media Law is a niche law firm, specialising in advice to independent production companies and broadcasters. We are true experts in our field: all lawyers and advisors have in the past worked either in-house for broadcasters and/or production companies. Accordingly, we fully understand production and the needs of our clients. We offer expert advice and representation on all programme content related matters (legal and regulatory), all aspects of business affairs, as well as complaints-handling and litigation. Visit www.abbasmedialaw.com or contact us directly at info@abbasmedialaw.com.